This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Olmsted County District Court
File No. K8-03-1650
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz,
John M. Stuart, State Public Defender, James R. Peterson, Assistant
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
Appellant challenges the district court’s imposition of the guidelines sentence and failure to grant a downward dispositional departure. Appellant also claims his Sixth Amendment rights were violated because the district court used a custody point in computing appellant’s criminal-history score without submitting to the jury the question of whether appellant was on probation at the time of the offense. Because we find that substantial and compelling reasons for departing from the guidelines sentence did not exist and because the district court was not required to submit the custody-point question to the jury, we affirm.
A state trooper stopped the vehicle appellant Fuad Mohomoud was driving. Appellant’s license was cancelled at the time. Because of suspected intoxication, an Intoxilyzer test was administered; it indicated that appellant’s alcohol concentration was 0.173. Appellant was subsequently charged with two counts of first-degree driving while impaired and one count of gross-misdemeanor driving after cancellation. Pending trial, appellant was released on bail, subject to the condition that he abstain from using alcohol. Because appellant violated this requirement several times, his bail was increased. He continued to consume alcohol.
Ultimately, appellant pleaded guilty to one count of first-degree driving while impaired (DWI), in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002), and one count of gross-misdemeanor driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5. (2002).
To assist in sentencing, a presentence investigation report (PSI) was prepared. The PSI noted appellant’s history of alcohol use, and it disclosed a record of six prior misdemeanor convictions, including two DWIs, and four prior felony convictions. The PSI report also stated that appellant had refused to complete a supervised-release program that was a part of an earlier sentence, that he had committed another felony while he was supposed to be in that program, that he had committed three new offenses while serving another probationary sentence, and that he had given nine positive breath tests while on release pending trial in the current case. The PSI further reported that his probation officer concluded that appellant refused to accept responsibility for anything he did and that despite discussions of treatment, appellant had not shown any interest in treatment until recently. At the time of the PSI there were three new charges, including a DWI, pending against appellant. The PSI investigator recommended that appellant be sentenced to the presumptive sentence of 60 months in prison and noted that appellant could pursue treatment opportunities in the prison system. The presumptive sentence was based on a criminal-history score of four, with three points for felony convictions and one custody-status point for being on probation when the offense occurred.
Appellant also underwent a statutorily required chemical-health assessment. The evaluator stated that appellant had a great deal of motivation for treatment. The evaluator noted that appellant had struggled while on probation in the past and before pleading guilty to the current offense. The evaluator noted that, looking solely at appellant’s probation record, he does not appear to be a good candidate for probationary treatment, but stated that appellant had not been in treatment in the past. The evaluator stated that in the past appellant had not been motivated for treatment, but was now practically begging for some kind of help. The evaluator found appellant to be chemically dependent and recommended that appellant be placed in voluntary inpatient treatment.
At appellant’s sentencing hearing, the state asked for the presumptive sentence of 60 months of incarceration. Although no formal motion had been made in the past, appellant’s counsel asked for a downward dispositional departure to probation so that appellant could be placed in an inpatient chemical-dependency treatment program. Appellant’s counsel discussed the recommendations of the chemical health evaluator. The district court found “no substantial and compelling reasons to depart from that sentence” and sentenced appellant to the presumptive sentence of incarceration for 60 months on the felony driving-under-the-influence charge. This appeal follows.
The first issue is whether the district court abused its discretion in declining to make a downward dispositional departure from the presumptive guidelines sentence.
district court’s decision whether to depart from the sentencing guidelines will
not be overturned absent an abuse of discretion. State
v. Givens, 544 N.W.2d 774, 776 (
The district court
must apply the presumptive sentence “unless the individual case involves
substantial and compelling circumstances” and may grant a motion for a
dispositional departure if those circumstances exist.
This court has
held that where compelling circumstances for a downward departure exist, the
district court must consider those circumstances in addition to reasons for not
departing. State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002), review denied (
In this case, the
district court stated that there were no substantial and compelling reasons to
depart from the presumptive sentence.
The threshold question we face is whether substantial and compelling
circumstances for making a dispositional departure existed. When considering a dispositional departure,
the court focuses on the defendant as an individual and on whether the
presumptive sentence would be best for him and for society. State
v. Heywood, 338 N.W.2d 243, 244 (
argues that there are substantial and compelling reasons for granting a
dispositional departure because the chemical-health evaluator found that appellant
was chemically dependent and recommended that he undergo voluntary inpatient
treatment. In State v. Trog, the Minnesota Supreme Court found that there were
compelling and substantial reasons for a downward dispositional departure. 323 N.W.2d 28, 31 (
Three of the
factors listed in Trog do not weigh
heavily for or against probation here. Appellant
was 25 years old when he committed the crime; the defendant in Trog was young and still in school.
defendant in Trog, who had a clean
record and no history of problems with the police, appellant has been convicted
of six misdemeanors, including two other DWIs and four felonies since 1998.
Another Trog factor is appellant’s remorse for
his offense. See id. at 31. Although
appellant told the district court, the PSI investigator, and the chemical-health
evaluator that he was sorry, at the same time appellant told the PSI
investigator that he was not intoxicated enough to be a danger on the highway,
that he had been swerving because he was tuning the radio and looking between
the seats, and that his friends were to blame because they did not tell him he
was too intoxicated to drive. In
addition, while on probation, appellant continued to drink in violation of his
release conditions and committed further crimes. This is far different from the situation in Trog where the defendant was extremely
contrite and shaken by the incident.
The next factor is appellant’s cooperation with authorities and the court. Appellant violated the conditions of his release on several occasions. He was told by the district court that he could not drink anymore and continued to drink in violation of the terms of his release. Although appellant partially cooperated with the police during the arrest, he also lied and told the officer that he had a driver’s license. These facts show appellant was at times not cooperative with authorities and the court. Therefore, this factor weighs against finding that appellant was amenable to probation.
age, none of the Trog factors support
finding appellant to be suitable to individual treatment in a probationary
setting, and the factors of prior criminal record, remorse and cooperation
weigh against this finding. In
addition, the facts in this case are similar to those in State v. O’Brien, where a clinical psychologist recommended community-based
treatment for compulsive gambling, but also admitted that the defendant had
fled from authorities in the past and never voluntarily enrolled in
treatment. 429 N.W.2d 293, 295-96 (
next issue is whether appellant had a constitutional right to have a jury
determine that his criminal-history score included a custody-status point. A challenge of a defendant’s sentence raises
a constitutional issue which we review de novo.
State v. Saue, 688 N.W.2d 337,
340 (Minn. App. 2004), review granted
In Blakely v. Washington, the United States
Supreme court held that a judge may not impose any sentence that is greater
than that which can be imposed “solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
Blakely to the Minnesota Sentencing
Guidelines in State v. Conger, this
court held that in order to comply with the Sixth Amendment as applied in Blakely, an accused has the right to
have a jury make the findings that support an upward durational departure from
the presumptive sentence. 687 N.W.2d
639, 644 (Minn. App. 2004), review
State v. Brooks, this court held that
Blakely does not require a jury
finding to establish custody-status points as part of the defendant’s criminal-history
score. 690 N.W.2d 160, 163-64 (Minn.
App. 2004), review granted (
district court in this case determined appellant’s presumptive sentence based in
part on appellant’s criminal-history score, which included a custody-status
point because appellant was on probation when he was arrested. Whether appellant was on probation at the
time of his arrest is established by looking at the court’s records of appellant’s
prior conviction and sentence. As the
court held in Brooks, the district
court need not submit the question of a custody-status point to the jury and
could find the custody point on its own without violating appellant’s Sixth
Amendment right as applied in Blakely.
The Minnesota Supreme Court granted review in Conger, but stayed
additional processing of that matter, pending a final decision in State v.
Shattuck, C6-03-362 (